Faculty News

for November, 2012

Professor Brad Karkkainen was quoted in a MinnPost article, commenting on litigation filed by the non-profit White Bear Lake Restoration Association against the Minnesota Department of Natural Resource (DNR) to enjoin groundwater pumping that is allegedly lowering lake levels on the popular lake in the Twin Cities north metro area. The restoration group filed an action under the Minnesota Environmental Rights Act (MERA), which authorizes citizens to sue to enjoin impairment of natural resources in the state. Citing a preliminary finding by the U.S. Geological Survey that White Bear Lake is hydrologically connected to the underlying Prairie du Chien aquifer, the complaint alleges that lake levels have declined by six feet in the last decade as a result of DNR-permitted groundwater pumping by municipalities, businesses, golf courses and other bulk water users. "The case will turn on a factual determination," Prof. Karkkainen said, adding that "if the claims are true, the plaintiffs have a pretty strong case" because the lake is the type of natural resource MERA seeks to protect, and a precipitous drop in lake levels could be considered an "impairment" for purposes of that statute if it "materially adversely affects the environment." Factual issues likely to be disputed are whether, and to what extent, DNR-permitted groundwater withdrawals have contributed to declining lake levels. The DNR is statutorily authorized to administer the use, allocation, and control of the state's waters, and to establish, maintain, and control lake levels.

Professor William McGeveran was a panelist in a roundtable about cell phone privacy on the Huffington Post's new video podcast channel, HuffPost Live. The panel considered court and Congressional decisions about law enforcement access to data from smartphones.

Professor William McGeveran appeared in the "Good Question" segment on WCCO News, answering a viewer's query about Facebook. A hoax message spreading through the social network encourages users to post a status update full of legalese to protect their privacy and copyright interests. The message isn't effective or necessary, McGeveran explained: "There are legitimate privacy concerns about Facebook; ownership of your content really isn't one of them."

Professor Dale Carpenter was quoted in a Star Tribune article entitled "Convicted Priest Gets New Trial in Sex Case." The article stated that the State Court of Appeals said a priest was improperly convicted on the basis of church doctrine. Carpenter was quoted saying, "This is a narrow decision, but it could actually put prosecutors in difficult positions in future prosecutions because it's obviously relevant that this is a clergy situation, but you can't talk too much about it."

Professor Richard Painter's prior research on legal and ethical risk-taking by decision makers experiencing a "loss frame"—a choice between two bad alternatives—in business or government was cited by the Denver Business Journal. Discussing the psychology of cover-ups, the article stated: "Why do we have this pattern of bad, risky decisions? The answer may be that this pattern is deeply imbedded in human behavior. There's research to support the contention. It's cited by no less an authority on cover-ups than John Dean, the former counsel to President Richard Nixon and the administration member who finally blew the whistle on Watergate. Writing recently on the legal website Justia.com, Dean cited the work of law professor Richard W. Painter, himself a former counsel to a president, George W. Bush."

Professor Dale Carpenter was quoted in a MinnPost "Eric Black Ink" column entitled "Something Changed: Picking a Supreme Court Justice is Now a Partisan Battle." Black wrote: "I asked constitutional law professor Dale Carpenter of the University of Minnesota Law School whether he believes Supreme Court justices are able to follow some set of neutral principles of legal analysis, even when it leads them to policy outcomes with which they would disagree. I really liked the maturity, complexity and balance of his answer, which went like this: 'There's evidence that the justices do vote against their policy preferences from time to time, enough to disrupt the general narrative that they just vote their ideological preferences. Chief Justice Roberts' vote to uphold most of the Affordable Care Act is the latest big example. But that doesn't stop the general story from being true.'"

Professor Oren Gross was a guest on WCCO's News & Views with Roshini Rajkumar to talk about the conflict between Israel and Hamas. Gross is an expert in international law, national security law, international trade, and political and legal issues involving the Middle East and particularly issues involving the Israeli/Palestinian conflict. He is an authority on issues dealing with terrorism and the legal responses to terrorist threats.

Professor Claire Hill's paper with Professor Steven Davidoff, "Limits of Disclosure," was cited in the Harvard Law School Forum on Corporate Governance and Financial Regulation blog. The paper argues that disclosure is overemphasized as a solution to securities market problems. The rationales underlying disclosure are less sound than is generally thought. Disclosure solutions are nevertheless developed and argued for, in significant part because they fulfill the need to "do something" in response to a perceived problem, and because they let people believe that better disclosure might have prevented, and could in the future prevent, bad decisions.

Professor Steve Meili presented his research comparing asylum jurisprudence and practice in the United States and Canada at Oxford University's North American Center, which is based at St. Antony's College. Meili's talk was part of a larger study analyzing the impact of international human rights treaties in Australia, Canada, New Zealand, the United Kingdom and the United States. On the basis of quantitative and qualitative data, he identified several of the factors that determine whether such treaties help or hurt asylum-seekers in individual cases.

Professor Susan Wolf appeared on Minnesota Public Radio with Karen O'Connor, co-producer of a new Frontline film on assisted suicide entitled, "The Suicide Plan" on "the underground world of assisted suicide." Wolf has worked on end-of-life issues for over 25 years and is co-author of a new book on termination of life-sustaining treatment and care of the dying to be published by Oxford University Press next year.

Professor Bernard Levinson will give a talk in conjunction with the Italian translation of his book Legal Revision and Religious Renewal in Ancient Israel at Pontifical Gregorian University. Levinson is currently spending the academic year at Hebrew University in Jerusalem.

Professor Michele Goodwin gave a TEDx talk that focused on the rule of law and its limitations in protecting against violence directed at women and girls. Goodwin highlighted her field research in India, the Philippines, and South Africa, speaking specifically about the ways in which girls are forced into underage marriages, trafficked into child pornography, and otherwise exploited. For example, she noted that in South Africa, a girl is more likely to be raped than provided the opportunity to attend school. Goodwin reminded the audience that law in a vacuum will not liberate women or girls, but that collaborations that involve law enforcement, legislators, and community organizations can provide the types of synergies that lead to change. TED talks have become famous for disseminating "ideas worth spreading." Those invited to give TED and TEDx talks include Nobel Laureates, former US Presidents, and industry thought-leaders.

Professor Susan Wolf will lead a faculty seminar at Harvard Medical School on November 16. This seminar, sponsored by Harvard's Division of Medical Ethics, will focus on "Returning Individual Results and Incidental Findings to Participants in Genetic Research." Wolf has led multiple National Institutes of Health-funded projects on this topic and is currently writing a book funded by a Robert Wood Johnson Foundation Investigator Award.

Professor Jane Kirtley was the principal speaker for a panel, entitled "Global Privacy and Advertising Developments," at the Practising Law Institute's Communications Law in the Digital Age 2012 conference in New York. Kirtley was also the author of the panel chapter published in the course handbook. Current students Mikel Sporer (’13) and Emily Mawer (’14) and alumnus Jason Steck (’12) assisted in the preparation of the chapter.

Professor Myron Orfield and the Institute on Metropolitan Opportunity hosted a forum entitled "Fully Developed Suburbs." Some 132 suburban officials from cities and school districts came to the Law School to discuss the Met Council's new housing planning process.

As reported in Roll Call, Bloomberg and other media outlets, Professor Richard Painter, Lawrence Lessig, Trevor Potter, and Theodore Roosevelt IV had a telephonic press conference in which they outlined the proposed American Anti-Corruption Act, a law that would overhaul campaign finance (including by allowing taxpayers to allocate a $100 tax rebate to political campaigns of their choice), impose strict lobbying and conflict of interest laws, and end secret political money. They and other lawyers, lobbyists, businesspeople and public interest advocates devoted considerable effort to discussing and drafting different parts of this proposed legislation.
The text of the Act can be found at http://represent.us/about. (Click on "Read the Act.")

Professor Susanna Blumenthal was quoted in a Star Tribune article entitled "Anoka County's Silent Inmate Flummoxes Authorities." The article detailed the case of a 37-year-old nurse apprehended for burglary who refused to allow police to take fingerprints or a mug shot, will not respond in court unless addressed as "Jane Doe," and has refused to cooperate with county experts attempting to determine her competency to stand trial. In view of the stakes of criminal trials, Blumenthal explained, courts have elaborated rules and procedures to distinguish real from feigned incompetence, but judges find them difficult to implement where the defendant is uncooperative. Moreover, Blumenthal noted that even where a defendant has been positively diagnosed with a mental illness, thorny legal questions remain as to how long a defendant can be detained for purposes of resolving the competency question and whether a defendant can be compelled to submit to treatment or take medication in order to be rendered competent to stand trial.

Professor Dale Carpenter was quoted in a Pioneer Press article entitled "Pig Tattoo Lands Reputed Gang Member in Hennepin County Jail." The article detailed an event of a person's body art possibly becoming an illegal act. Carpenter stated, "It would constitute, in my view, what's called a 'true threat' under the Supreme Court's First Amendment decisions. It's a serious threat to the health or life of another person and such statements, no matter what form they're made in—written, verbal, put on Facebook or put on your body—it is unprotected."

Professor Daniel Gifford recently spoke to a group of investigators of the Minneapolis Civil Rights Department on administrative law. Gifford reviewed the law on due process and the structure of administrative law.

Professor Dale Carpenter was quoted in a New York Times article entitled "States' Votes for Gay Marriage Are Timely, With Justices Ready to Weigh Cases." The article stated: "Dale Carpenter, a law professor at the University of Minnesota who opposed the proposed constitutional amendment, said supporters of same-sex marriage had reason to be wary of a Supreme Court decision on whether the Constitution requires it. "This looks like increasing momentum for same-sex marriage," he said of Tuesday's developments, "but I've got to say it's still 41 to 9. It's been pretty rare for the court to take on 41 states."

Professor Dale Carpenter spoke on WCCO's "Good Question: How Can States Pass Laws That Contradict Federal Law?" After Colorado and Washington approved ballot initiatives to make using small amounts of marijuana legal, there is uncertainty as federal law classifies marijuana as an illegal drug under the Controlled Substances Act. Carpenter stated that typically, states have the authority to set laws regulating criminal activity. "The Constitution makes it clear, in the event of a conflict, federal law prevails," he said.

Professor Michele Goodwin delivered her lecture, "The New Reproductive Battlefront: Law, Medicine, & the Cultural Politics of Pregnancy," at the 2012 William H. Leary Lecture at the University of Utah S.J. Quinney College of Law. Goodwin's lecture discussed her recent scholarship on the constitutionality of maternal conduct laws and fetal protection laws. Goodwin's lecture particularly focused on the changing use of these laws by law enforcement and prosecutors. Originally intended to protect women from third-party harms during pregnancy, prosecutors have more recently used these laws against pregnant women by prosecuting them for a variety of activities, including falling down steps, drug use, refusing cesarean sections, and attempting suicide. In this context, Goodwin's lecture examined the use of the criminal law to shape new reproductive health norms by emphasizing the selective enforcement of these laws against poor women and women of color. The Lecture is an annual event honoring former Law School Dean William H. Leary, who emphasized the importance of tolerance, respect, and open discussion of philosophical questions in an intellectual atmosphere. Prior Leary lecturers include Justice William Brennan, Cass Sunstein (Harvard), Owen Fiss (Yale), Kenji Yoshino (NYU), Duncan Kennedy (Harvard), Michael Walzer (Princeton), Joseph Sax (Berkeley), and Patricia Williams (Columbia).

The New York Times' "Dealbook" section published an article by Steven Davidoff on a paper by Davidoff and Professor Claire Hill, entitled "Limits of Disclosure." The article discusses the disclosure for some of the most "toxic" securities, arguing that it revealed enough to put the sophisticated investors who bought it on notice of the securities' low quality. Thus, solutions focusing on improved disclosure miss the mark.

Professor Jane Kirtley appeared on the "Privacy and Intrusion on Seclusion" panel at the 2012 Annual Conference of Ad IDEM/Canadian Media Lawyers Association, presenting a paper, "Intrusion on Seclusion: A Quick Peek at U.S. Law." The panel discussed the Ontario Court of Appeals' opinion issued earlier this year recognizing this tort in the province for the first time, and compared it with existing law in the United States and the United Kingdom.

Professor Richard Painter was quoted in a Wall Street Journal article on financial disclosure and conflict of interest issues that could arise from Governor Mitt Romney's private equity holdings if he wins the election. Painter, who was the chief White House ethics lawyer for President Bush, said that a President Elect Romney would probably have to sell many of his holdings because it is nearly impossible to disclose the underlying assets in the funds and there would be too many financial conflicts of interest. The article quoted Painter saying: "I think a lot of this is going to have to be sold," said Richard W. Painter, a former chief ethics lawyer in the George W. Bush White House and a Romney supporter. Even if a future President Romney could satisfy federal disclosure rules without selling, Mr. Painter said, there would be so many possible conflicts of interest in the portfolio he would be wise for political reasons to sell any but the blandest assets. "If I were the ethics lawyer in the White House and he were the president, my advice would be to just get rid of" many of the holdings, he said.

Professor Michele Goodwin delivered the 2012 Stuart Rome Lecture at the University of Maryland School of Law. Goodwin's lecture focused on criminal prosecution of drug-dependent pregnant women. Goodwin discussed the selective enforcement of criminal laws, which tend to target vulnerable subpopulations, and the normative problems that are likely to emerge from continued reproductive policing in the United States. The Stuart Rome Lecture brings distinguished scholars, policy makers, and practitioners in the field of law and health care to speak at the Maryland School of Law. The lecture series is supported by Stuart Rome's family in honor of his life and work as an attorney, community activist, art patron, and humanitarian.

Professor D. Daniel Sokol participated in a discussion of issues likely to arise in antitrust and health care over the next four years along with Christine Varney (Cravath and former Assistant Attorney General for Antitrust), William Kovacic (George Washington University Law and former Chairman of the Federal Trade Commission), and Michael Salinger (BU School of Management and former Director of the FTC's Bureau of Economics). The event was sponsored by the American Bar Association Section of Antitrust Law Health Care and Pharmaceuticals Committee.